R v LC
[2017] ACTSC 209
•7 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v LC |
Citation: | [2017] ACTSC 209 |
Hearing Date: | 7 August 2017 |
DecisionDate: | 7 August 2017 |
Before: | Elkaim J |
Decision: | See paragraph [31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the presence of a child under ten years of age – guilty plea – no criminal history. |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 27(1)(d) |
Cases Cited: | R v BI (No 4) [2017] ATSC 71 R v BO (No 2) [2014] ATSC 371 The Queen v Thompson (No 3) [2015] ACTSC 379 |
Parties: | The Queen (Crown) LC (Offender) |
Representation: | Counsel Mr J Lawton (Crown) Mr K Archer (Offender) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number: | SCC 89 of 2017 |
ELKAIM J:
On 10 April 2017, the offender pleaded guilty to a charge of committing an act of indecency in the presence of a person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 12 years imprisonment.
The offender was born in 1995. JS, a girl, was born in 2009. On 18 December 2016, the offender was 21 years of age. JS was 7 years of age. At about 11.30 pm on 18 December 2016, the offender committed an act of indecency in the presence of JS.
Over a period of approximately 15 minutes, the offender showed JS, on his mobile phone, pornographic videos graphically depicting sexual acts between men and women. The offender was apparently initially reluctant to show JS the videos and stopped when he realised that it was inappropriate for him to do so.
Details of what was seen in the videos can be found in the Agreed Facts for Sentence (Exhibit A).
The offender has no prior criminal record. He was brought up by his father and his stepmother from the age of five. His mother let him down as a child, leaving him in the care of another woman until his father assumed his care.
The offender left home at the age of 16 and has generally lived with his sister. At times, he slept on other people’s couches. This was the case when the offence occurred.
The offender left school at the end of year 10. He took up an apprenticeship as a mechanic. His first job lasted for four years. His current employment has been in place for about eight months. He has been studying mechanics at TAFE but is having difficulty passing the program. He has some literacy problems which have hampered his progress.
The offender has had a number of injuries, including a laceration to his head, and has fractured his clavicle on two occasions. It is expected that he will need to undergo surgery at some point in the future.
The offender drinks alcohol, but apparently not to a dangerous degree. He has tried some illicit drugs but, similarly, does not seem to have a drug problem.
The offender is currently in a relationship with a young woman who is supportive of him. He has a young son, who is apparently a product of a “one night stand”. He sees the child on a regular basis.
The offender was first exposed to pornography when he was about 12 years of age. He has since continued to access pornography, sometimes watching it about four times a week. He has stated that he has no interest in having sex with children and does not see them as sexual objects.
The offender has acknowledged that his actions were “100% wrong” because JS was “too young”. He has also accepted that his actions could have had a negative impact on JS.
The offender attempted suicide on two occasions about two years ago following a relationship breakdown. He has continued to have suicidal ideation. He has not received any treatment.
Dr Seidler, a clinical and forensic psychologist retained on behalf of the offender, delved deeply into his background and administered various psychological tests. Her report is Exhibit 1. She said this, at paragraph [81] of her report:
LC denied any sexual intent in his offending behaviour and although the physical games with the victim could be considered possible grooming behaviour, there is no other evidence in this case of attitudes or behaviours that may facilitate child sexual abuse. With this in mind, it seems that the most likely explanation for LC’s offending behaviour is immaturity and naivety, associated with poor decision-making in the context of life stressors and low mood. Within this context, LC made an inappropriate and impulsive decision to expose a young child to his pornographic material but there is no evidence available to me that he intended to progress to a contact offence with this child.
The physical games referred to in the above passage are described in paragraph [57] of Dr Seidler’s report. I accept that the game played with JS was designed to divert her attention away from the videos that she had just seen. I also accept the psychologist’s assessment, as quoted above.
Dr Seidler assessed the risk of the offender committing further similar offences. She said that a number of factors lead to a conclusion that the risk of re-offending is “commensurate with an average sex offender for his age”. Those factors include the offender’s youth and immaturity, his position of “power” over a young victim, his poor self-esteem and his interest in “incest-themed pornography”.
She does not suggest any chance of reoffending involving underage victims.
Dr Seidler recommended that the offender receive psychological treatment to address these factors. Nevertheless, she concluded, at paragraph [94] of her report:
LC impresses as a stable and pro-social young person, who is engaged in a productive routine in the community and has support through his sister, father and current girlfriend. He has stable accommodation, is employed and has an appropriate personal routine…I do not consider that LC requires a program of treatment specific to sexual offenders.
Most importantly here is that there is no suggestion of any paedophiliac tendency or that the child was being groomed for any future sexual activity. In addition, there is nothing to suggest that the offender committed the crime in order to obtain any sexual gratification for himself.
Sentencing a young person with no criminal record is always difficult. The seriousness of the crime must be balanced against the need to ensure that the offender is given every chance of rehabilitation. I must also take into account the normally automatic entry onto the sexual offender’s register.
There are no comparable cases. I was referred to the following: R v BI (No 4) [2017] ACTSC 71; R v BO (No 2) [2014] ACTSC 371; and The Queen v Thompson (No 3) [2015] ACTSC 379. These cases provide little assistance because their facts are so very different.
The objects and purposes of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT), must be taken into account. Section 10 specifically provides that imprisonment is a last resort. I do not think that imprisonment is presently an option in this case. It would completely ruin the offender’s prospects of rehabilitation.
I think that the offender must remain in the community but be compelled to undergo the treatment recommended by the psychologist.
At the same time, it is important to recognise that the exposure of a child to pornographic material is completely unacceptable.
In this case, the child’s mother read out a Victim Impact Statement (Ex B). She spoke of both the hurt to the child and to the family. She said that both her daughter and the family were “scarred”.
She had felt that she was already an overprotective parent. She was now “worse than before”. She spoke about her daughter having been robbed of her innocence, that she now saw sexual activity in terms of what she had seen in the videos and she had been denied a sexual education commensurate with her age and immaturity. She was asking questions that her parents were not ready to answer and that she should not have been asking because she should not have known the basis for such questions.
It may be thought that the approach that I am taking is too lenient. There is a strong argument that a term of imprisonment should be imposed. If there was any suggestion that any other child might be at risk of reoffending by this offender, I would not take the course I propose. What I am trying to achieve is to signal the condemnation of the courts and of the public of this behaviour but to give this offender the chance to deal with his problems and return to society and to contribute to it positively.
My decision has also been influenced by the offender’s plea of guilty, expressions of remorse and absence of any criminal record.
In my view, this matter falls squarely within s 27(1)(d) of the Crimes (Sentencing) Act 2005 (ACT). The offender should be given an opportunity to address the background to his behaviour before sentence. Accordingly, I intend to defer sentence for a period of about 6 months to enable him to comply with the bail conditions that I set.
For purposes of s 118, I can indicate that if the offender complies with my orders the sentence he will receive is likely to be by way of a Good Behaviour Order associated with community service. If he does not comply, the sentence is likely to be a term of imprisonment.
I make the following orders:
(a)In relation to the offence of act of indecency in the presence of a child under ten years of age (CC 13194/16), the offender is convicted.
(b)The sentence is deferred until 26 February 2018 at 10.00 am.
(c)The offender is released on bail on 7 August 2017 to appear in the ACT Supreme Court on 26 February 2018, subject to the following conditions:
(i)That he accept the supervision of the Director-General of Corrective Services or his delegate.
(ii)That he attend such treatment and counselling and obey reasonable directions as stipulated by the Director-General of Corrective Services or his delegate.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 7 August 2017 |
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